OA673: "Don't Sanction Me, I'm Old!" – Dersh

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: And welcome to Opening Arguments. This is episode 673. I'm Thomas. That's Andrew Torres. How you doing, Andrew?

0:01:23 Andrew: Hi! I am amazing. How are you, Thomas?

0:01:29 Thomas: Doing great. Excited to be back on the four -show -a -week schedule. That gives us more chances to talk about how shitty Alan Dershowitz is.

0:01:38 Andrew: I thought it was possible that our listeners had forgotten my mentor, and literally I cannot express, the person who had the most influence on my views of what being a lawyer was like in my formative years, Alan Dershowitz. Remember how Alan Dershowitz now is Mike Lindell's personal lawyer? And remember how Mike Lindel, the exhausted Lindell, in turn, is the puppet master for Carrie Lake, the failed Arizona gubernatorial candidate, Mark Fincham, the failed Arizona secretary of state candidate, Mark Finchem, involved in the fraudulent elector scheme. Carrie Lake, Mark Finchem, are not just scumbags and insurrectionists. These are idiot scumbags and insurrectionists.

0:02:09 Thomas: Wow. Talk about the blind leading the blind.

0:02:37 Andrew: And their lawyer is Alan Dershowitz. And as we discussed on this show, the complaint that was filed on behalf of Ms. Lake and Mr. Fincham in Arizona was sanctionably bad. And when I say sanctionably mad, I don't mean that as a matter of opinion. I mean, the judge in that case awarded sanctions against the plaintiff's lawyers under Rule 11. And we discussed that here on the show. So Alan Dershowitz has taken exception to that. Dershowitz doesn't think that he ought to be sanctioned along with, you know, the other two goobers who represent Lake and Fincham because he's Alan Dershowitz and he's special.

0:02:36 Thomas: Because A

0:03:22 Andrew: So filed an application for order to show cause. This was filed on December 29th. And the reason we're talking about it, I mean, in addition to we've made it through the holidays, is that today is when on behalf of the Maricopa County defendants, right? Right. Katie Hobbs, the outgoing secretary of state, incoming governor of the state of Arizona, have filed their response to Alan Dershowitz's application for order to show cause oral argument requested for. You know, you can't possibly sanction me. And it's delightful. And Alan Derschowitz has lost his goddamn mind. So we're going to break it down. John, we're going to start, as always, with the opening arguments.

0:04:08 Andrew: Let's read this backwards. Do you remember on Monday when I asked you to put a pin in the fact that Sidney Powell, on the shortlist for, you know, dumbest lawyers in America, representing her before the January 6th committee, a $2,000 an hour lawyer from, yeah, A real lawyer. Not an elections lawyer, but, you know, a real lawyer for McDermott, Will and Emery, a respectable, white shoe coat factory firm. Dershowitz is represented by Jack Wilenchik. Can scroll down to the bottom to the complaint, but also in Arizona, they put their little uh attorney notice thingy up at the top, so it's got their header, uh, Wilenchik and Bartmess, uh, attorneys at law, 2810 North Third Street.

0:04:27 Thomas: Real Lawyer, Bialy.

0:05:01 Thomas: Shtok.

0:05:01 Andrew: Phoenix. Arizona.

0:05:01 Thomas: And Bloom.

0:05:02 Andrew: Yes. Exactly right. And so if you're asking who is Jack Wilenchik, you know, not he's on the pleadings, he's also an insurrectionist. Oh, I'm spoiling it. Uh, Jack Wilenchik is a Phoenix based lawyer who, number one, represented Kelly Ward. She's the head of the Arizona Republican Party and was one of the fake Arizona electors. Moving was her lawsuit to declare Arizona's electoral count void. That The Arizona Capital Times notes that the papers filed late Wednesday. That was the the of November. Right. So three weeks after the election came in, claimed that the system used in Arizona to check signatures on mail in ballots lack sufficient safeguards to ensure that they actually came from the registered voters whose envelopes were submitted.

0:05:02 Thomas: Yeah.

0:05:51 Andrew: Her attorney, Jack Wilenchik, said that also said that the illegally required observers were unable to see the process from where they were placed. This was the related to the Pennsylvania. We want to sneeze on people during a pandemic. This these people were 10 feet away. So, look, I that, like, you can't hang over a legitimate election worker during a epidemic from 10 feet way. But you can see things like, hey, is that election worker shredding ballots, tearing stuff up? Right. And and that's all as an outside party that you're entitled to do. You want more than that, then become a poll worker.

It's bipartisan. OK, you Can get in there. But Wilenchik had to add in this complaint, which was dismissed for being completely made up and full of crap, that the software which would try and read and pre-fill the rejected ballots was highly inaccurate and would flip votes, erroneously pre-filling Biden twice as often as it did Trump. All of that is nonsense. That was my introduction to Jack Wilenchik. Else did he do? Oh, he represented the cyber ninjas. Um, if you're an attorney, again, don't take legal advice from podcast. And cyber ninjos would like their representative, maybe maybe.

0:06:20 Thomas: Yeah. Yeah.

0:07:09 Thomas: Find.

0:07:09 Andrew: Pass. Yeah. You. Know. Yeah.

0:07:11 Thomas: A. Ninja lawyer, I don't. Do ninja. Law.

0:07:13 Andrew: It's. Just. Yeah, just to say, oh, sorry, we've, we, we took on digital katanas last, last week.

0:07:19 Thomas: So.

0:07:19 Andrew: So, you know, no, no luck here. So represented the cyber ninjas where the judge presiding in that case. So here's what happened. The cyber ninjos were authorized by the Republican Arizona state legislature to conduct, quote, an audit, end quote, of the 2020 election that took a billion years, revealed no fraud. And in the process, the cyber ninjas tried to hide everything they were doing. And various media outlets were like, dude, you were appointed by the legislature to audit a public election. That means we can file Freedom of Information Act requests and figure out what you're doing .And cyber ninjos were like no, you can't.

0:08:05 Andrew: And the court was like, oh, yes, they they can. And when cyber ninjas refused to turn over records, the court, uh, threatened, I don't know that any fines were ever actually imposed, but the court threatened a fifty thousand dollar daily fine, uh. The newspaper asked for a thousand dollars a day, and the judge was like, oh no, that, that, that would be, quote, grossly insufficient to coerce cyber ninjs into complying with my orders. So, so how about 50 grand? The lawyer representing Cyber Ninjas was, of course, Jack Wilenchik, said that, quote, and again, I'll include this in the show notes, said that the company is insolvent, has laid off all employees, including former CEO Doug Logan, and can't afford to sift through the records to find those related to the audit.

0:08:55 Andrew: Not a great argument. The, yeah, the legislature hired my firm, we did a terrible job, we pocketed the money, but now the money's all gone and we fired everybody, and no one is going to, uh, sift. You, you expect us to sift through papers? Come on. Um, that's not a winning argument in front of the judge. The judge said the court is not going to accept the assertion that cyber ninjas is an an empty shell and that no one is responsible for seeing that it complies. There's been no evidence shown that cyber ninjas is actually insolvent. Millions of dollars were donated to the election review, and the company could comply for very little cost by just turning its records over to the Senate and allowing the legislative lawyers to determine that which must be publicly disclosed is, uh.

0:09:41 Andrew: Were very clearly bad faith positions taken by cyber ninjas. And Will and Chick added, I love this, uh, that he was going to appeal the order because of his belief that, uh, cyber ninjs is not required to turn over documents under the Arizona state equivalent of the Freedom of Information Act because it's a private company. Of course, that was rejected at both the trial court and the appellate level because, yeah, you're a private company, but when you're a private country, you're not a private company that has been deputized by the legislature to fulfill a legislative function like auditing an election. Guess what? You get to say like, oh, yeah. No words. Who even knows what cyber ninjas is, right? Like you, you, you can't perform a core legislative function, uh, and then you know, sort of get around that.

0:10:32 Andrew: By going that you're a private company. But um, hilariously, uh, and Chick simultaneously advanced the contradictory positions of the company is insolvent, has no, has no employees, couldn't possibly do this work, but we will appeal these adverse rulings until.

0:10:48 Andrew: The end of time. Yeah. Seems pretextual. Um.

0:10:51 Thomas: And. Not just being able to argue in the alternative or whatever, like we sometimes. Time you.

0:10:55 Andrew: I. Mean this is you, these were, when, a great question, we've talked about that before, you can advance somewhat of recovery when you are a plaintiff and you are pursuing various avenues of, hey, look, like, I know I was wronged, I'm not entirely sure how, and we're waiting to see what the facts show. But as long as there is, you know, a plausible theory as to both, we've talked about pleading in the alternative. But when a court orders you to do something and you say, I can't do that because X.

0:11:27 Thomas: Can't. Give.

0:11:28 Andrew: That's. Not a, but if.

0:11:29 Thomas: Excuses.

0:11:29 Andrew: I could, right.

0:11:29 Thomas: In the alternative. Yeah. My. Dog ate my homework. Or my cat ate it. Both.

0:11:31 Andrew: Exactly right. Yeah. Or my.

0:11:36 Thomas: Yeah.

0:11:36 Andrew: Grandfather died.

0:11:38 Thomas: Or. It's. Fine. I. Actually did it.

0:11:39 Andrew: Uh, or. Yeah, right. Yeah. Yeah. Yeah. Right. So Wilenchik also requested to withdraw from that litigation because he hasn't been paid by the cyber ninjas. The said, no, we're not letting you out because the only lawyers that you've offered up in the alternative are not admitted pro hac vice. And so you got to stick around until there are some Arizona lawyers on this case. Um, the judge refused to release him. Wilenchik went to the press and said the judge has, quote, shown an intemperate attitude towards me and my firm and is biased against conservatives, uh. Put, put a, put a pin in that one. Okay. In fact, let's not put a pen, let's pull it out, uh. Going to talk about this. Dershowitz is still pulling the like, I am a a liberal Democrat and I am just interested in the truth.

0:12:32 Andrew: Well, you for a liberal Democrat, it seems very odd that you have a lawyer who says, I am a conservative lawyer and I represent only conservatives in conservative causes. And that's why this judge hates me. So, you now, just something to think about. But that is paragraph two, page one of Dershowitz's affidavit in opposition to sanctions is, I'm a liberal democrat who has almost never voted voted for a Republican candidate. I strongly believe that the 2020 election was fair.

0:12:45 Thomas: Hmm.

0:12:57 Thomas: Doing. A lot of, uh, work there.

0:12:59 Andrew: Yeah, I strongly believed that the twenty twenty election was fair and resulted in the correct outcome. OK, but like, why are you representing Mike Lindell then? So that's not the most disturbing thing about Jack Wilenchik. By the way, we're still on line one of this. Yeah, we were just at Dersh's lawyer, Jack Wilenchik's. So the most disturbing thing about Jack Wilenchik, and that the the reason I got sent down the rabbit trails because the name was familiar. And so the first thing I check is on American Bar and I found it. But Wilenchik was not only on board with the Eastman-Chesebro fake elector scheme, he was the person who knew that it was illegal. Here's what he said in an email word for word, reported by the New York Times. Wilenchik told his fellow lawyers he had been discussing an idea proposed by Ken Chesebro, an ally of Mr. Eastman's, to submit slates of electors loyal to Trump.

0:12:59 Thomas: Wow.

0:13:53 Andrew: Quote, now this is Wilenchik describing Chesebro's plan to the other co-conspirators, quote, his idea, so his meaning Chesebro, is that basically that all of us, Georgia, Wisconsin, Arizona, Pennsylvania, etc., have our our electors send in their votes, parenthesis, even though the votes aren't legal under federal law, dash, because they're not signed by the governor, end parenthesis. So that members of Congress can fight about whether they should be counted on January 6th. We, it gets better, we would just be sending in single quote fake end quote electoral.

0:14:33 Thomas: Yikes.

0:14:33 Andrew: Votes Votes to Pence so that, quote, someone, end quote, in Congress can make an objection when they start counting votes and start arguing that the, quote fake, end unquote, votes should be counted. So, yeah,

0:14:36 Thomas: Hey.

0:14:46 Thomas: Andrew, uh, is this what We call a bad document in the biz. I.

0:14:50 Andrew: This is, this is a bad document. This shows you the lawyer, Alan Dershowitz, handpicked to represent him in this sanctions hearing is an insurrectionist, lying sack of crap, is somebody who passed on advice of, hey, I'm a lawyer, here's an illegal thing, why don't we.

0:15:08 Thomas: Would.

0:15:08 Andrew: Do this, um, who Dirsch has working for him. Let's go back and take a look at the order, because the order I thought was pretty clear. It it analyzed under both Rule 11, which says that when you offer up a pleading to the court you are responsible, as that that lawyer, for minimum of homework to make sure that, the best of your knowledge, information, and belief formed after an inquiry reasonable under the circumstances, this is directly from the language of Rule 11, that one, it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase increase the cost of litigation. Two, that the claims are warranted by existing law or by a non -frivolous argument for expanding or new law.

0:15:55 Andrew: And three, that the factual contentions have evidentiary support or, if so identified, will likely have evidentary support after reasonable opportunity for further investigation or discovery. That's the bare minimum you must do when you are a lawyer and you file a paper with the court. And I've said file. But the language of Rule 11, and we know this from Lin Wood's efforts to try and get out of sanctions in Michigan, the language of Rule 11 is really broad.

By presenting to the court a pleading, written motion, or other paper, whether by signing, filing, submitting, or later advocating it. So that's the standard, pretty low bar. The way in which the court analyzes Rule 11 is to and balance out the interests of justice in you having a lawyer who will be your zealous advocate, who will come up with creative and nuanced and maybe even off-the-wall arguments versus baseless filings, as leading decision in the Ninth Circuit writes. On occasion, attorneys engage in litigation tactics so vexatious as to be unjustifiable, even within the broad bounds of our adversarial system, and neither the other parties nor the court should have to abide such behavior or waste time and money coping with it. Okay, that's that's your standard, and the court found, right, so so the the necessary requirements are finding that a complaint is legally or factually baseless from an objective perspective and, uh, two, that the attorney has failed to conduct a reasonable and competent inquiry before filing.

0:17:35 Andrew: So the court actually gave Carrie Lake and her lawyers, including Alan Dershowitz, the benefit of the doubt on two out of the six claims. And the court was like, look, we are really bending over backwards here. But I suppose if you squint, this is not sanctionable. It still loses. Right. But but the The four acts that were sanctionable were, A, allegations regarding paper ballots. We talked about this the last time. The complaint over and over again says Arizona, you know, there was a conspiracy to move Arizona from a paper ballot to an electronic computer based ballot system, which implies that there are no paper ballots, and in fact, Arizona is a paper ballots system where the tabulation is done by computers, right?

0:18:22 Andrew: Right. And that's a huge difference, because when it's just the tabulations being done, you have that paper trail that all these idiots keep saying, well, you don't have a paper trail. Yes, you do. You have the ballot. So, you know, for example, they picked they picked out paragraph 168 says plaintiff Carrie Lake intends to vote in the midterm election in Arizona to do so. So she will be required to cast her vote and have her vote counted through electronic voting systems. Not true. Plaintiffs, as the judge points out, are not required under Arizona's current procedures to cast their votes through electronic voting systems, and indeed, defendants have submitted evidence indicating that plaintiffs themselves have voted on paper ballots for nearly 20 years.

0:19:08 Thomas: Yeah. Hard to miss that and

0:19:08 Andrew: Yeah. So first sanctionable conduct, you said in your complaint that it's not a paper ballot system, and it is. Second, You've Literally Voted via paper ballot. Yeah, uh, set of sanctionable contact. Allegations that Dominion voting systems, uh, that their, uh, machines were not tested. So paragraph 20 says that the secretary of state's, quote, certification of the Dominion Democracy Suite 5.5B voting system, as well as its component parts, was improper absent objective evaluation. And paragraph 57 said Arizona intends to rely on electronic voting systems to record some votes and to tabulate all votes cast in the state of Arizona without disclosing the systems and subjecting them to a neutral expert analysis. Okay, so that's the the complaint. The judge points out, these are allegations that Arizona's electronic voting systems have not been subject to objective evaluation or neutral expert analysis, and they're wrong.

0:19:19 Thomas: You've literally voted via Paper ballot. I It's

0:20:07 Andrew: That's the court segment. As the court previously discussed, Arizona's equipment undergoes thorough testing by independent neutral experts with the Secretary of State's Certification Committee and a testing laboratory accredited by the Election Assurance Commission. So yeah, You can't just say you didn't test the machines when the objective evidence is, yes, we did test the machines.

0:20:28 Thomas: Not Allowed under the, like, there was a little bit of wiggle room of, like, you know, or some investigation would lead you to believe that, if something is, what's the level of demonstrably wrong you're allowed to be in a, in something like this, before it's very, very bad. Ah,

0:20:42 Andrew: That's a really good question. And we've talked about sort of the federal pleading standards, the Iqbal and Twombly well -pleaded complaint rule. You could say on information and belief, the independent testing conducted by the Secretary of State's office was flawed or or insufficient.

0:20:50 Thomas: Yes Wasn't

0:21:01 Andrew: Right. And we'll discover that on future evidence. And what the federal pleading standards would require there is that you have some reason to believe that, that you could articulate.

0:21:00 Thomas: Sufficient Or Something, yeah

0:21:13 Andrew: Right, yeah. Not just in my head, I think Democrats don't play fair, right?

0:21:09 Thomas: Something Anything Anything, literally Anything Ah Now

0:21:18 Andrew: But something of like, you know, an affidavit from someone that says, yeah, I used To work For The Secretary Of State Could It Be spider Yeah So, uh, yeah, but but that's what we mean by you need to have, uh, complaint has to plausibly on its face allege the cause of action. And if you just say, well, I'm pretty sure something hinky was going on, that the courts are going to be like, come, come back when you can tell us why you're pretty sure. Right?

0:21:24 Thomas: Does It need To Be A Real person Or Can it be a Fake security Spiders, yeah Or Is that all they say, or do they say you're sanctioned, you've now been Didn't say

0:21:52 Andrew: You Look, look, that is, I'm glad you asked that question, is the difference between just losing a motion to dismiss and getting sanctioned, right? If they had just said on information and belief, the independent review was partisan and, you know, and biased and yeah, blah, blah. Then the judge would have dismissed that out because there was no basis for that allegation. But they wouldn't have said this frivolous. They wouldn't have said you knew the opposite was true. Right. Have gotten away with that. But they didn't. They had to say, you know, nobody evaluates these machines. Well, Alan Dershowitz, don't put your name on a complaint that says nobody evalurates These machines if fact people evaluate the machines. Sanctionable conduct involving the Cyber Ninjas audit. And again, remember, remember, Alan Dershowitz has now hired the lawyer that represented Cyber Ninjas. What the court said in its order. Setting aside issues concerning the reliability of the Cyber Ninja's audit, it strains credulity to characterize the hand count that the Cyber Ninja's did as a proof of concept that a full hand count is feasible, let alone a superior alternative.

Remember that they, when asked, well, how would you count votes if not through election tabulation machines? They're like, oh, yeah, we can do it by hand, just like the cyber ninjas did. Mr. Logan, testifying on behalf of cyber ninjs, testified that in their hand count, it took two thousand people, two and a half months to hand count two

0:21:59 Thomas: Exactly Yeah Hmm, deep State, blah Blah, blah Oh My

0:23:24 Andrew: Out of several dozen contests on each ballot in only one of Arizona's 15 counties. These Arizona Law requires the county boards of supervisors canvas general elections within 20 days after the election. So saying, yeah, oh yeah, we have a model, uh, it's the cyber ninjas model, um, yeah, that that took three times as long, uh, do one 90th of The job. So, uh, the court was like, we're sanctioning you for that, that's just, that's so stupid that we are going to sanction. And finally, there was a catch all. There were lots of other bits and crap in the complaint that were just sanctionably wrong.

So here's the court. Weight one assigns to plaintiff's evidence, an essential flaw remains in their overarching theory of the case. Simply put, there are yawning gaps between the factual assertions made, the harm claimed, and the ultimate relief requested. Plaintiff never put forth sufficient allegations about Arizona's election systems, let alone sufficient evidence to support any such allegations. And unpack that for a second. They're saying you won't even tell us what you think happened here. Right. Because all of this, this is sub 9-11 conspiracy theory. Right? Right. Like no Republican has successfully answered the well, how did the Republicans manage to win 50 senators in 2020

0:23:31 Thomas: God Yeah Yeah Uh

0:24:48 Andrew: If the election was rigged? How did we elect Republican members to the House of Representatives? Right. And they can't answer that question. Or if there's Sidney Powell. Know. You could come up with a theory. Right. And that's what this court is saying. The Right, court to say, you know, you could say, well, all the Republicans who were reelected are in on it. And, you know, you write, but You won't even tell us a theory of how the election was stolen, let alone put any evidence of how that might back up the thing that you're not saying, that You're offering to demonstrate a likelihood that Arizona's vote would be incorrectly counted in the 2022 midterm election due to manipulation. Court reached its conclusion in its dismissal order, ruled the plaintiffs' claimed injuries were too speculative to meet the injury in fact requirement. OK,

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0:27:56 Andrew: That's why the court's awarding sanctions. If you're Alan Dershowitz, here Are the arguments. I am not making this up. This comes directly from his affidavit. This is what he wanted to tell the court for why he should not be sanctioned. And again, there's some other legal arguments that are unbelievably terrible that I'm going to evaluate. But first, I just want to read you the first five paragraphs of his affidavit. Number one, I'm 84 years old and mostly retired from the practice of law and teaching. Is not an exception for I'm old and cranky and not good at this anymore, more, okay, um,

0:28:01 Thomas: I know, I don't want to be out, I reject Yeah Because, uh, if that's your excuse, then what did, why are you filing in the begin with, the court didn't come to him and ask Him, hey Do You have any complaints about the election? Oh,

0:28:41 Andrew: That's Right I Limit my role to consultation on legal and constitutional issues. I have no office staff, and my medical conditions, I've had three strokes, limit my travel and court appearances. I am in bed with COVID now. That's paragraph one. Um, Mike Lindell to represent him and his company against defamation charges. My role was to serve as a consultant to his primary legal team on First Amendment and related constitutional issues. I helped to develop the following argument. When a private company is hired by the government to perform a quintessential governmental function, such as vote counting, it cannot refuse to provide relevant information about the workings of its machines on the grounds of business secrets. Uh, is unrelated to any argument that is being made right now, by the way.

0:29:32 Thomas: Good, because I did not understand it. Yeah.

0:29:34 Andrew: Well, what he's, so it's actually the flip side, uh, the Cyber Ninjas response. So one of the arguments, uh, but but again made very, very stupidly, one of the arguments that election deniers have made across the country to no avail, because unlike, unlike Cyber Ninjas, which was deputized by the Arizona state legislature to audit an election, right, thus it, an arm of the government, Dominion Voting Systems was not deputized by any state legislature to run elections. Right. Their machines were hired pursuant to a government contract. OK. And So, and the machine, it's still people counting the votes. It's still people feeding it into the machines, it's still people taking it out of the machines, it's people, right, like the government is still doing the governmental function, the machines are purchased, rented in fact. Yeah, it would be like saying that the company that installs stoplights is now an arm of the government because you, they have stoplight cameras in it and can see if you're in. Yeah.

0:30:10 Thomas: Yeah.

0:30:35 Thomas: You're FBI Agent rents a car, so therefore Hertz is now the government. Okay. How

0:30:40 Andrew: That is exactly how bad this argument is. So, uh, but so the argument that they've tried to make is that makes Dominion Voting a state actor. That means Dominion Voting can't violate the First Amendment. And it's just, that shit, crazy, bonkers.

0:30:54 Thomas: Would they be violating the First Amendment? I don't even understand. Is that like the election steely amendment

0:30:54 Andrew: Okay. Because uh, Hugo Chavez. I don't know. I, I it Their First First Amendment argument is that, you is biased against conservatives. And so, again, I only speak so much crazy, Thomas, like I'm at the limits. I've got to get, you Know, Cortana to. Yeah. OK.

0:31:03 Thomas: No.

0:31:20 Andrew: Yeah, I wish I could answer it, but you're going to need somebody a bit closer to the front lines of nutball. All dumb, so continues, I am a liberal Democrat, we read that one already.

0:31:17 Thomas: All right question retracted No.

0:31:31 Andrew: Right, the then there's some other shit, he's not right. Three, I tip, uh, Dershowitz, uh, did you give me a lot of really good advice early on in my legal career? I'm gonna give you actual, uh, not, not legal advice

0:31:32 Thomas: You're not Do take do take okay do take advice from a ex-student. So

0:31:45 Andrew: Yeah yeah Yeah, uh, my thoughts as a Harvard Law student of yours and not as your lawyer. You're opposing a Rule 11 sanction on the ground that you failed to conduct a sufficient investigatory inquiry into the allegations made in the complaint, maybe don't begin paragraph three of your affidavit with, "I have not familiarized myself with the details of the 2022 Arizona election. I was asked to provide my consultation only on constitutional issues in lawsuits involving voting machines. My role was expressly limited to the potential for future abuses." No, it was not. "Based on the unwillingness of voting machine companies to disclose the inner workings of their machines. I'm not an expert on voting machines, but I am an expert in constitutional law, and I have limited my advice to the area of my expertise."

0:32:36 Andrew: Expertise. Um, that's the most disingenuously stupid thing I have ever seen a lawyer. Right, uh, as I point out, number one, you're accused of not doing due diligence and admitting you didn't do due diligence, not a great starting point, Dersh. Uh, the second half is to to say, I can, I was hired to answer abstract questions. No, you were not, you were hired as part, part of a litigation team. And every legal question involves the application of legal principles to the facts of the case. Way That's the law works. You say, well, what are you going to do? Like, well, the First Amendment says Congress shall make no law. Right, right, right. But how does that apply here to the voting? Well, the First Amendment says Congress shall make new law.

0:33:21 Andrew: That is nonsense, right? You absolutely need to know the facts of your case in order to render a constitutional opinion. So

0:33:30 Thomas: If you have a legal team doing some stuff, and that whatever they happen to do is sanctionable for some reason, they get sanctions, you're not allowed to be like, oh, I was just the, like, the Fourth Amendment guy of this team, I didn't do, are you allowed to kind of finger point and be like, I didn't do that part of it, or something, are you all just liable for the whole thing, joint and severally liable, right?

0:33:50 Andrew: The Baseline Yeah. The baseline is you sign on to a pleading and you're responsible, you have endorsed that pleading, right, when it bears your signature. The idea of, well, I only did, you know, this part, now there are cases, and and in fact Dershowitz cites these cases in his brief, uh, they are well distinguished by by the state's response, uh, by the state's opposition, uh, but but but let me tell you that there are a small number of cases in which this argument prevails, but only due to the testimony of the other lawyers that were involved, right?

0:34:28 Andrew: So you might think about that, right, requires, you know, kind of honor among thieves, right, like you're, you're talking about lawyers who are being sanctioned under Rule 11 who had an opportunity of

0:34:37 Thomas: Well I mean, we did have Sydney Powell kind of lie for the sake of what's his name, right, Lynn Wood

0:34:41 Andrew: Lynn Wood, that's exactly right Um that will come up um, but yeah, and and in that case you might remember Emily Newman tried the it's my first day, I don't know, I put in a couple of hours, the court was just like, that's lovely, you signed, you signed the pleading and it'smyfirstday I'm gonna go over, over well here.

And there are a couple of instances you might imagine, right, if, um, know, you've got 30 people, there's a massive Microsoft case, uh, represented by Covington and Berling, and they've got thirty lawyers on the team, and you know the last three are first years who were asked to write a discrete memo, and and again I, I was a first year, Covingtin and Berlin, so you, you really do get this.

Like on huge cases, a partner will say, hey, you, because you don't know anything, can you just write me a memo that outlines the standards for which, in Massachusetts, for which you can get a preliminary injunction, right? I don't want to bring you, I just need that by tomorrow to drop into my memo. I kind of know it, but I'd like you to write it so senior partner saying it would be better to take, you first year, a very junior associate and have them write kind of the basic legal standards than me having to waste time, even though I could do it in about half an hour and it might take them eight hours. And if I got to write off some of their time, we write off some of Their time.

0:34:42 Thomas: Yeah yeah yeah yeah It's they

0:36:03 Andrew: But hey, if Microsoft will pay for it, you know, and Microsoft will often pay, uh, knows, maybe maybe it's a win-win for everybody, right? And so you might imagine in that situation, 30 lawyers on the pleading, that the other partners kind of get together and like, hey, you know, every associate below this level really did nothing substantively, this, they were not tasked with evaluating the brief, they didn't read the fact section, they were never going to be part of the trial team, let them out of the sanctions. And there there are cases like that.

0:36:33 Thomas: Were just trying to get SAG-AFTRA credits for just being on the lawsuit and I'm

0:36:36 Andrew: Yeah, yeah, kind of. Right. And and and so there are cases to that effect. But that is obviously very distinguishable from a lawyer coming to a court after sanctions have already been issued and saying, I didn't know it was my first day, and I didn't do a lot of work, and I'm just the First Amendment guy, and whatever. Yeah. Paragraph four. Expressly refused to become counsel in this case, and I insisted on being listed as of counsel. By the way, that has no legal significance whatsoever. None. Zero. Zip. Zilch. Nada. Yeah. On

0:37:09 Thomas: Why does this dummy think that, is he allegedly a blah professor at a prestigious university? Yeah, what

0:37:13 Andrew: 10th, I was informed by plaintiff's counsel, Andrew Parker, that I needed to be admitted pro hoc vice, even though I was only of counsel and not retained to be on the proceedings in this matter. I have been listed as of counsel in many other cases in which my role was limited to consulting on constitutional or other legal issues. I've long regarded that as the proper designation in such cases. I was not assigned to investigate any aspect of this case and did not participate in the drafting of the complaint other than to advise on the paragraphs pertaining to the legal claim that a private company hired to perform a governmental function may not claim business secrets in response to a relevant discovery request. By the way, that's that's not a thing you write in a complaint in your book. But anyway, my only role was as a legal consultant, a role I played in numerous cases. I was not retained to participate in any investigation regarding the underlying factual basis for the complaint.

0:38:03 Andrew: I did not believe that agreeing to be an of-counsel legal consultant places any allegation on me to evaluate factual allegations. If that were the case, I could never be a constitutional or legal consultant because at my age and because I do not have the resources or energy to do anything but provide my legal and constitutional expertise. Expertise, that's a real sentence in his real affidavit.

0:38:24 Thomas: Right. Right. So he's like, I thought it was like Handmaid's Tale and counsel is the name of the guy that I'm helping. So I'm of count. Nevermind.

0:38:30 Andrew: In, Right. Yeah, right, exactly. In my nearly 60 years as a lawyer, I have never been sanctioned, disciplined, or subjected to a bar complaint. Well, first time for everything. Alan, I do not believe I violated any ethical rules in this case. Well, too bad. I taught legal ethics for 25 years. I know, I took ethics and would never violate, never knowingly violate any ethical rule. If I inadvertently violated any the Arizona rule, I apologize and will not do it again. Um, five, I have already suffered greatly and disproportionately from the sanction order. To my knowledge, I am the only lawyer against whom a bar complaint has been filed based on the order. That was news to me, but I am here for it. My has been highlighted in all the media reporting, including the claim that, according to the court docket, Harvard Law professor Alan Dershowitz is Lake's lead attorney in the matter. Not only am I not Lake's leader attorney, I have never met her and have no retainer agreement with. My consulting agreement is with one of the lawyers. There's more stuff. But but those are the arguments. Real. Not good.

0:38:39 Thomas: Yeah. Oh God.

0:39:27 Thomas: Really? So there's some plausibility to a non -lawyer on that. Like, It's like I was contracted. It's like I'm a subcontractor of the thing. So someone else is defending Lake and they just asked me to answer some questions, by the way, really incorrectly, but to provide some really bad bad legal information specifically about the First Amendment, and so therefore I'm like a guy that your guy hired that you never even, I never even met the actual guy, kind of thing.

0:39:32 Andrew: OK.

0:39:57 Andrew: And state's response to all of that is where you when we moved for sanctions? Right. Time to tell us this was August of 2022. Right, this is the, this is the winning argument here. And we're going to talk about some of the other arguments. But the winning argument, in my view, is if is the case, then right, follow what happened in the cases that you cite, which is when a motion for sanctions comes down and names you individually, right, which it did, right. The request was against the plaintiffs and their lawyers and Rule 11 expressly runs to the lawyers. Then you the things that you're doing in opposition to the motion for sanctions, right, because that's what they are, they're saying I don't deserve to be sanctioned because I did not personally engage in sanctionable conduct. Awesome, tell us that six months ago. Oh, you didn't. Well, then it kind of seems like maybe you're making it up right now, right? That

0:39:57 Thomas: Uh, I wonder

0:40:57 Andrew: And it doesn't yeah and it does it quite go that far, but but here's what it, here's where it does go to. So it begins, begins with, the state's response. Plaintiffs' First Amendment complaint and their motion for preliminary injunction were signed with slash S, that is the digital signature, by three of plaintiffs' attorneys, Andrew Parker, Kurt Olson, and Alan Dershowitz. This court expressly and correctly imposed the sanctions against all three attorneys. Dershowitz has now filed the show cause application, seeking to overturn the court's sanctions order as it applies to him. As explained below, Dershowitz's arguments are misdirected, and even were that not so, they are too late. To the extent that any of Dershowitz's contentions are both true and legally significant, his application should be brought against his co -counsel and not against us.

0:40:57 Thomas: Why he didn't yeah

0:41:43 Andrew: A really good argument. So so here's, here's how they break it all down. They're like, the signatures, so they begin with, although dramatically understated, the gravity of this allegation cannot be missed. Dershowitz accuses one or both of his co-counsel of using his signature on the motion for preliminary injunction and other filings without his knowledge and permission. The Maricopa county defendants take no position on whether this allegation is true. Indeed, we cannot know whether this is true and cannot respond to the allegations, only Dershowitz's co-counsel could do that. But for whatever reason, Dershowitz, who is himself an attorney and is represented here by counsel, has declined to bring this application against his co-counsel to whom it should be redirected. Good argument.

0:42:05 Thomas: Yeah. Suspicious.

0:42:25 Andrew: Yeah, uh, on the all the, it's my first day, I'm too old, I only do a limited thing, Dershowitz dershow

0:42:25 Thomas: I like those, it's my first day, it's my last day because I'm so

0:42:36 Andrew: Also argues in the OSC application that he had a very limited role in the litigation. While he says this in many different ways, one clear statement of it is in his allegation that he did not present, file, or advocate for any of the matters that were the actual subject of this court's orders granting sanctions, and thus sanctions against him would be unwarranted. Maricopa County defendants have no way of knowing the extent of Dershowitz's role in drafting the complaint, the First Amendment complaint, or the motion for preliminary injunction. Again, his co-counsel are the only ones who could possibly know whether this is true. But we do know that Dershowitz participated in teleconferences and was present telephonically for the preliminary injunction hearing. Then they give the hearing transcript and, you know, he sent an email. It wasn't just Dersh was there in the background. He sent an email to reschedule the conference date because he was traveling on that.

0:43:27 Andrew: So the whole, I'm just here to answer abstract constitutional questions. Well, then why do you have to participate in the hearing other than billable hours? But you can't do both. You can't bill the client and then say, right, but I'm not doing anything with this information. Yeah.

0:43:38 Thomas: Yeah. Yeah. I was just ripping them off. Come on, can't be held accountable. Oh, yeah, got that is okay, that's a very good point. You could have just Skyped in to answer some questions about the whatever, the First Amendment, that make no sense. Wow.

0:43:45 Andrew: Indeed, Dershowitz sought and obtained admission to practice Pro Hac Vice in this court, which would not have been necessary if he were merely consulting. That's a real good case. Yep. Yep, the state makes the comparison to the Lin Wood case. They say this court has noted similarities between this action and King v. Whitmer. Mayor. So again, Dershowitz's attempts to avoid sanction in King, it was high -profile attorney L. Lynn Wood who sought to distance himself from the case and assert that he had not authorized the other attorneys to include him on sanctionable filings.

But as the Eastern District of Michigan Court did in King, this court should reject Dershowitz's attempt to distance himself from sanctions that the court has already awarded. And then they quote from that, while Wood now seeks to distance themselves from this litigation and avoid sanctions, the court concludes that he was aware of this lawsuit when it was filed, was aware that he was identified as co -counsel for plaintiffs, and as a result shares the responsibility with the other lawyers for any sanctionable conduct. And and let me pile on that a little bit. Again, remember Rule 11, uh, not does require you to sign

0:44:50 Andrew: The pleadings, but it says presented, filed, signed, or later advocated. Um, but Rule 11 also has the 21-day safe harbor, right, serve a notice, Uh, you have three weeks to withdraw the pleading and then it's no harm, no foul. Wow. So Dershowitz knew that they were seeking sanctions on the basis of those pleadings. He had the opportunity to call in and go, you might want to withdraw this. He had the opportunity to submit evidence of, well, hey, you know, you you've sent this to me, but I don't have anything to do. He did none of those things. And so it's really, really hard to sort of draw the inference of, you You know, I just I was lying in bed with COVID and I'm 84 and he

0:44:59 Thomas: Yeah Okay. So. I. Think. I've put, put my finger on why initially I thought his argument sounded plausible, and that's because he was just flat out lying about every single thing. So if you're just, yeah, if your excuse is like, yeah, I was on the moon, and I'm like, well, yeah, if he was on the moon it's gonna be hard to whatever. And then Andrew's like, he wasn't on the moon. Oh, okay, now.

0:45:49 Andrew: Not, in fact, on the moon.

0:45:51 Thomas: I. See. Where I went wrong on, and. His.

0:45:52 Andrew: Yeah. Yeah. Kind of flipped ahead that the Maricopa County defendants also rely on the Rule 11 notices. Right. That was sent. Put Dershowitz on notice that absent immediate dismissal, in addition to filing a motion to dismiss, our client will seek Rule 11 sanctions, including attorney's fees and costs. Dershowitz's "I didn't know" argument is unpersuasive and further belied by the fact that he signed the response opposing sanctions. The time for arguing whether appropriate sanctions, whether sanctions are appropriate, is long past. The court has already ruled on that question, already issued its order. The courts should deny the OSC application is untimely. That's the show cause motion is untimely. And then, and really then liked this summary. So I'm going to read some of it. Dershowitz claims that he had little to nothing to do with the lawsuit and the filings that gave rise to this court sanctions order against him.

0:46:44 Andrew: That's false. Dershowitz, a prominent, well -known attorney, lent his name to plaintiffs and to their benefactor, Mike Lindell, to bring an action that made allegations about elections in Arizona and Maricopa County that were demonstrably false. Presumably, Dershowitz was paid for his role in this lawsuit. Now, faced with sanctions, DERSHOWITZ seeks to rewrite history and gloss over his role. But he already participated in the offensive conduct that this court determined warrants sanctions. His slash S signature appears on the First Amendment complaint and the motion for preliminary injunction, just the same as the other attorney's signatures. If he really had nothing to do with anything, if he really have nothing to deal with anything is he now alleges, the time to alert the court to that fact was in August of twenty twenty two when the opposition to the sanctions motion was filed.

0:47:31 Andrew: Dershowitz's slash S signature appears on that opposition, the same as the other attorneys, but no mention is made of Dershowitz's limited involvement. The court should not allow Dershowitz to avoid the consequences of his action. He participated in the attempt to frivolously discredit Arizona and Maricopa County. He should be held responsible. Brothers.

0:47:52 Thomas: Response is, won't be held responsible, he was touching her. I guess that's not your era, but that's. Uh, yeah. For.

0:47:59 Andrew: Not my era, but, you know, I got it. I got It.

0:48:02 Thomas: Life for me, I cannot remember. Oh, you could do a whole parody song of Dirsh's excuses. In that one, wow, that. Guy sucks. I'm so glad I was never taught ethics by that incredibly unethical idiot. And.

0:48:10 Andrew: Yeah. Wow. Wow. That's.

0:48:17 Thomas: Again. Andrew is completing ethical night school to make up for the fact that all.

0:48:23 Andrew: Uh, I. I I am. I am that.

0:48:24 Thomas: Right. Well, is uh, that all for uh, this, this iteration of Alan Dershowitz Sucks?

0:48:34 Andrew: Gets a reply brief, and I can't wait to see uh, the election. Denying co-conspirator insurrectionist asshole.

0:48:39 Thomas: Yeah. Like I said, I was old, I've only gotten older. I mean, it's ever since.

0:48:50 Thomas: That response, I'm, you know, I'm like two weeks older or whatever, so, you know, even more not responsible, um.

0:48:55 Andrew: And. And to be clear, because Dirsch might listen to this, what.

0:48:57 Thomas: Anyone.

0:48:58 Andrew: Adjectives. Right. Denying co-conspirator. That applies to his lawyer. Right. I have no knowledge as to whether Alan. Dershowitz played any role in the insurrection or the 2020 election. I know that his client is one Of the most prominent insane election denialists, but his lawyer, Jack Willencheck, participated in the scheme to substitute knowingly fake electors in order to try and bring down the United States government. Government, and that to me speaks, my, as I can't wait to see what that guy is going to put in print to say, uh, response to this brief, because, um, uh, it.

0:49:06 Thomas: Right. It's.

0:49:37 Thomas: Gonna be good, yeah.

0:49:37 Andrew: Feels. Feels pretty knocked down to me, uh.

0:49:39 Thomas: And. Then after how many times you get to reply in the response and all that, when does he just get the sanctions? When can we slap the cold sanctions on him?

0:49:46 Andrew: So.

0:49:46 Thomas: I.

0:49:46 Andrew: A, uh, once the court, the court could deny, uh, before reply brief comes in. I doubt they will do that, like, they're gonna give Dershowitz the opportunity to sort of fully litigate this. And then they will issue a mandate soon thereafter. Sure that Dershowitz will appeal and, you know, we'll sort of be stuck with that proceeding for a while. But an appeal does not stop the sanctions from running. And so Dershowitz will have to post a bond. And we discovered this was the best piece in that paragraph five, that somebody has opened up a bar complaint against Alan Dershowitz in Massachusetts, and.

0:50:23 Thomas: Would hope.

0:50:24 Andrew: I. Would love to see, you know, late and whatever, but like, unlike Rudy Giuliani, who's never going to practice law again, Alan Dershowitz is still out there representing Mike Lindell. Right? He.

0:50:37 Thomas: He. Could be right. Behind you right now, he's still out there, everybody.

0:50:39 Andrew: He. Could. Be, he's in bed with Covet if you believe this affidavit, but uh, it, is a practicing lawyer, and I I I would love to see that brought to a halt for lending his name. I just thought that this was, this was beautifully prepared. Right, the, look like, man, we're not evaluating how much substantive work you did. You knew what it meant when you said, I, Alan Dershowitz, will sign my name onto this endeavor. You knew that was going to get public attention. You know that we do, do right, like we're not the only ones that read the complaint backwards, and you look, you look at the back and you're like, oh, oh, was brought by an election denying conspiracy theory, this was probably Alan Dershowitz, didn't he used to have some standards, right? Like.

0:50:40 Thomas: Yeah. Yeah.

0:51:24 Andrew: That's, you know, what lending your name to an action means, it's a civil action, so don't, you know, don't give me any of this, "everybody needs a lawyer," that, that's not the case, um, should pay, he, the, the price, and I don't just mean like not getting invited to the pool parties at Martha's Vineyard that he used to like to attend, yeah.

0:51:40 Thomas: God, this guy, I hate. Him all.

0:51:41 Andrew: Yeah. Think you should, and, it our newer listeners that haven't heard my heartfelt break with Alan Dershowitz from, I think it's episode 187, uh, was really, I mean, I, we joke about it now, but he really was my mentor in in law school, and it's really hard to come around to this position, but he's lost his goddamn mind, and there we go.

0:52:06 Thomas: Right, that's our show, uh, see you for the next episode, which will be a Liz Diasode. Hopefully, and uh, yeah, and also I'm curious to see how ChatGPT did on the bar, and how I did, so that'll be next episode. Tune in Wednesday night, we'll See you then.

0:52:11 Andrew: Yeah.

0:52:22 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

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